Citation Nr: 0107695
Decision Date: 03/15/01 Archive Date: 03/21/01
DOCKET NO. 00-00 701 ) DATE
)
)
On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO)
in Salt Lake City, Utah
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of service connection for a back disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and Veteran's Spouse
ATTORNEY FOR THE BOARD
M. N. Romero, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1939 to
September 1945. He had an additional period of active
military service from March 1946 to September 1947.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a November 1999 RO decision, which denied the
veteran's application to reopen a claim of service connection
for a back disability, to include arthritis.
FINDINGS OF FACT
1. In a November 1979 decision, the Board denied the
veteran's claim of service connection for a back disability.
2. Evidence submitted subsequent to the November 1979 Board
denial of service connection for a back disability bears
directly and substantially upon the specific matter under
consideration, is not cumulative or redundant, and in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claims of service connection for a
back disability, to include arthritis.
CONCLUSION OF LAW
New and material evidence sufficient to reopen the veteran's
claim of service connection for a back disability has been
submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R.
§ 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran had active military service from December 1939 to
September 1945. He had an additional period of active
service from March 1946 to September 1947.
In May 1944, a flight surgeon indicated that the veteran was
hospitalized for a period of two days as the result of having
sustained back and knee injuries during a parachute jump over
water. Occasional pain on exertion was noted.
According to a notation in the veteran's service records in
May 1944, while in service, the veteran was in an airplane
that was forced to ditch into the English Channel on the way
to Florennes, Belgium. The diagnosis was exposure.
According to a report in the veteran's service medical
records dated in September 1944, the veteran sustained a back
injury in May 1944.
On a report dated in December 1944, there was a notation
indicating the veteran had injured his back in May 1944. It
was noted there were no objective findings and that the
veteran's right leg was slightly short.
On a medical report dated in February 1945, the veteran
related he had hurt his back in May 1944 after having bailed
out of his aircraft.
In September 1945, the veteran underwent a separation
examination. It was noted the veteran had a strain to his
lumbar region, which was accidentally incurred in a parachute
jump into water, in May 1944. On physical examination it was
reported there were no musculoskeletal defects.
The veteran filed a claim of service connection for a lumbar
strain at the time of his separation from service in 1945.
By an October 1945 RO decision, service connection for
residuals of a lumbar strain was denied. It was noted that
the veteran's records were incomplete.
In July 1966, the veteran filed a claim of service connection
for a back disability to include arthritis.
During the month of July 1966, the RO received a written
statement from Dr. R.E.S., M.D. The physician reported
having examined the veteran in May 1962. According to the
physician, the veteran had complaints of low back pain and
right knee pain. The veteran stated his condition was the
result of injuries he received in service.
Also received during the same month, was a letter dated in
January 1965 from A.G.T., D.O. He reported having treated
the veteran for partial dislocation of his 4th and 5th lumbar
vertebrae and left sacroiliac joint in 1952. He related that
the veteran gave a history of having injured his lower back
when he hit the water after parachuting from his airplane,
while in service.
Lastly, in July 1966, a representative of the veteran's
employer, D.W.P. submitted a written statement, which
indicated that the veteran had worked for their transfer and
storage company during the period from September 1950 to May
1961. According to D.W.P., the veteran had been able to
perform his duties as a truckdriver, but at frequent times,
he had been bothered by right arm and leg stiffness.
By a May 1968 decision, service connection for a back
disability, to include arthritis was denied.
In January 1978 the veteran filed an application to reopen
his claim of service connection for a back and hip
disability.
A letter dated in December 1977, was received from a foreman
of the transfer company the veteran had worked for in 1950.
The foreman related the veteran had had constant pain caused
by problems with his back and legs.
In March 1978, the veteran underwent a VA examination. At
this time he gave a clinical history wherein, he indicated
that he had injured his back in 1944 as the result of a
parachute jump. It was noted that no surgery was performed.
According to the veteran, he has had left leg pain and left
hip pain, which was aching with a feeling of numbness in the
left leg to the middle of the foot. He had some sharp pains
six years ago, but this has not been a major component
recently. The examining physician's reported diagnosis
indicated the veteran had recurrent lumbosacral strain with
superimposed probable early osteoarthritis with moderate
symptomatology. The examiner who reviewed x-rays of the
veteran's lumbar spine gave an impression of minimal
degenerative lumbar spine changes. The examiner ruled out
arthritis and noted that there were no comparison studies.
By a June 1978 RO decision, service connection for a back
disability was denied.
In April 1979, the veteran and his wife testified in support
of the veteran's claim of service connection for a back and
hip disorder. It was emphasized that there was evidence of
the veteran's back injury incurred as the result of his
parachute jump over water in service. The veteran described
in detail how he injured his back when he struck the water.
The veteran related he had always had trouble with his back
since he incurred his injury in service. The veteran's wife
also related details in support the veteran's claim.
In November 1979, the Board denied service connection for a
back disability.
In December 1998, the veteran filed an application to reopen
a claim of service connection for a back disability to
include arthritis. Evidence submitted subsequent to this
decision is summarized below.
An examination report dated September 1999, indicates the
veteran was examined by Dr. R.B.B., M.D. for several
complaints to include, intermittent low back pain, neck pain,
left knee pain and right shoulder pain. It was noted that
the veteran related his medical history of having sustained a
lumbar injury as the result of a plane crash during World War
II. A review of the veteran's lumbar spine x-ray revealed
the veteran has diffuse osteophytes. Good joint space was
also noted. The veteran's diagnosis was cervical and lumbar
osteoarthritis and degenerative joint disease.
In an October 1999 statement Dr. R.B.B., M.D. indicated that,
in his opinion, "it is just as likely as not," that the
veteran's back condition was caused by his plane crash.
II. Legal Analysis
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection may also be granted for arthritis if such
is shown to be manifested to a compensable degree within one
year after the veteran was separated from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
In November 1979, the Board issued a final decision wherein,
the veteran's claim of service connection for a back
disability was denied. The November 1979 Board decision is
final, with the exception that the claim may be reopened if
new and material evidence is submitted. 38 U.S.C.A. §§ 5108,
7104; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v.
Derwinski, 1 Vet. App. 140 (1991).
New and material evidence means evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156.
There is no requirement, however, that in order to reopen a
claim, that the new evidence, when viewed in the context of
all the evidence, both new and old, creates a reasonable
possibility that the outcome of the case on the merits would
be changed. Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998)
(expressly rejecting the standard for determining whether new
and material evidence had been submitting sufficient to
reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App.
171 (1991)).
When the Board rendered its decision in November 1979, it
primarily considered the veteran's service medical records.
In May 1944, a flight surgeon indicated the veteran was
hospitalized for a period of two days as the result of having
sustained back and knee injuries during a parachute jump over
water. At that time, occasional pain on exertion was noted.
Subsequent treatment reports dated in September 1944 and
December 1944, made reference to the veteran's same back
injury. Lastly, at the time of the veteran's separation
examination in 1945, it was again noted that the veteran had
a strain to his lumbar region, which was accidentally
incurred in a parachute jump into water. However, on
physical examination, it was reported that the veteran had no
musculoskeletal defects.
The Board also considered various written statements, which
were submitted in reference to corroborating the veteran's
in-service back injury.
Since the Board rendered its decision in November 1979,
medical evidence from the veteran's current physician has
been added to the record, including an examination report
dated in September 1999, and a medical statement dated in
October 1999. Based on the veteran's examination report, the
veteran was shown to have lumbar osteoarthritis. Shortly
thereafter, in October 1999, the same examining physician
opined that "it is just as likely as not," that the
veteran's back condition was caused by his plane crash in
service. The referenced statement, coupled with the
examination report is clearly suggestive of a link between
the veteran's current back disability to include arthritis
and his first period of active military service. In other
words, the September 1999 examination report and the October
1999 statement are new and material evidence, and therefore
sufficient to reopen the veteran's claim of service
connection for a back disability to include arthritis.
As new and material evidence has been presented, the
veteran's claim must be considered in light of all the
evidence, both old and new.
ORDER
The veteran's claim of service connection for a back
disability to include arthritis is reopened based on the
submission of new and material evidence.
REMAND
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instruction completely.
As noted in the discussion above, the veteran's claim was
reopened on the basis that new and material evidence had been
submitted. The next step is to address the question of
whether service connection is warranted. In this regard it
is noted that legislation was enacted in November 2000 which
repealed the requirement under 38 U.S.C.A. § 5107 that a
well-grounded claim need be submitted before VA is required
to assist the claimant. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The RO is
hereby instructed to develop the veteran's claim in
accordance with these new and binding requirements.
Specifically, the veteran should be afforded a VA
examination, which addresses the nature and etiology of his
claimed back disability, to include arthritis. Green v.
Derwinski, 1 Vet. App. 121 (1991)
Accordingly, the case is again REMANDED to the RO for the
following action:
1. The RO and any physician to whom this
case is assigned for an examination
and/or statement of medical opinion must
read the entire remand, to include the
explanatory paragraphs above the numbered
instructions.
2. The RO should undertake all
developments required under the Veterans
Claims Assistance Act of 2000.
3. The RO should obtain and associate with the
claims folder all relevant private and VA treatment
records that have not already been made part of the
claims folder.
4. The veteran should be scheduled for
an orthopedic examination to evaluate the
nature and etiology of any back
disability he may have. The claims
folder and a copy of the Board's remand
must be made available to the examiner
for review prior to the examination. All
findings should be reported in detail.
The examiner should provide an answer to
the following questions:
a. Does the veteran have a back
disability, including arthritis?
b. The examiner should state a medical
opinion as to the time of onset of each
back disability the veteran has.
c. Is it at least as likely as not that
any back disability is a result of a
disease or injury the veteran had in
service, particularly including his back
injury, which he says he incurred in 1944
as the result of a parachute jump into
the water. The response must take into
account the veteran's assertion that his
arthritis is the result of his prolonged
immersion in cold water following his
parachute jump into the English Channel
in 1944. If so, please identify what
type of arthritis is attributable to
service and what joints are affected.
If the examiner determines that it is not
feasible to respond to any of the above
items, the examiner should identify
specifically to which it is not feasible
to respond.
The veteran must be properly informed of
his scheduled VA examination, and he
should be given notice of the
consequences of failure to report for the
examination, including an explanation of
the provisions of 38 C.F.R. § 3.655. If
the veteran does not report for the
examination, the claims folder should
include clear documentation of his
failure to report, including a statement
as to whether he failed to appear without
notice, or whether he requested
cancellation or postponement and
rescheduling of the examination.
4. After the development requested above
has been completed, the RO should review
the veteran's claims folder and ensure
that all the foregoing development has
been conducted and completed in full. If
any development is incomplete,
appropriate corrective action should be
taken.
5. The RO should readjudicate the claim
of service connection for a back
disability to include arthritis. The
entire claims file must be reviewed prior
to any adjudicatory action. If the claim
is denied, the veteran and his
representative should be issued a SSOC
(which addresses all of the additional
evidence, including all medical evidence
and statements added to the claims folder
since the last statement of the case),
and given an opportunity to respond,
before the case is returned to the Board.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder shall be returned to the Board for
further appellate review. No action is required of the
veteran until he receives further notice. The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this appeal.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
G. H. Shufelt
Member, Board of Veterans' Appeals